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01 Jul 2016

Naming no names? Anonymity for suspects and complainants in criminal investigations

Co-authored by Nick Barnard

After a lengthy investigation, the Crown Prosecution Service recently announced that Sir Cliff Richard would not face charges relating to historical sexual abuse claims made against him. He and others in similar situations have argued that, save in exceptional cases, anyone facing such allegations should never be named publicly until charged.

The  lifelong anonymity granted by law to complainants has also been questioned. This is an emotive subject which requires a careful balancing of the interests of suspects, victims and the media (which has a duty to report matters of public interest).

Suspect anonymity has been much debated. In November 2012 Leveson LJ said in his Report on The Culture Practices and Ethics of the Press that ‘It should be made abundantly clear that save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public.’ A robust recognition of the need to protect suspects’ identity  from publication by the press, save in exceptional circumstances.

In 2013, the College of Policing published ‘Guidance on Relationships with the Media’ which dealt with the issue of the police revealing the names of individuals suspected of committing serious crimes. It followed the principle set out by Leveson. The Guidance advocates that ‘police forces must balance an individual’s right to respect for a private and family life, the rights of publishers to freedom of expression and the rights of defendants to a fair trial. Decisions must be made on a case-by-case basis but, save in clearly identified circumstances, or where legal restrictions apply, the names or identifying details of those who are arrested or suspected of a crime should not be released by police forces to the press or the public.’

In May, the College of Policing opened a consultation on its proposed Authorised Professional Practice (APP) on Media Relations. Section 4 of the APP recommends that the police will not name those arrested or under investigation, save in exceptional circumstances where a policing purpose applies. It advises that no details that could identify such a person should be released in response to a media enquiry.

The APP cites the example of appealing for victims and witnesses as one matter that could constitute a “policing purpose”. It is only intended to guide police decision making and does not interfere with the media’s rights to publish information obtained elsewhere. In Sir Cliff’s case, the ‘policing purpose’ behind the media forewarning of the raid on his home has not been confirmed.

Is the guidance being followed?

Whilst Leveson LJ and the College of Policing both say that suspects should only be named at the pre-charge stage in exceptional circumstances, the reality is different. Suspects are routinely named in the media before any decision has been made to charge them. For example, Regulators, such as the FCA and SFO, release press statements following the arrest of individuals, typically describing only their age and gender.  However, even this approach offers no protection that individuals’ names will not enter the public domain through another route (see the investigations of Operation Tabernula, FX and Libor where the identities of the suspects were published very quickly).

Presently, individuals being investigated for criminal offences have no right to anonymity. Although they can pursue civil actions for libel if false statements are published about them that harms their reputation, this cannot undo the damage already caused.

A principal argument advanced for naming suspects before charge is that it encourages other victims to come forward and report crimes. This is often cited in sexual offences because it gives victims the confidence to come forward feeling that they will be believed. However, is naming a suspect in the hope that it may encourage others to come forward always a sufficient reason? Given that individuals are named when charged, victims can still come forward at that point.

How then do we ensure that the rights of suspects are fairly balanced with the public interest of naming them? One proposal is to legislate for a complete ban on naming suspects before charge subject to exceptional circumstances. In March 2015 the Commons Home Affairs Select Committee called for a statutory ban on releasing the names of suspects accused of sexual offences that have not yet been charged. However, is it fair to suspects of other crimes that we prioritise those accused of sexual offences?  It seems wrong to categorise suspects according to the crime of which they are accused. Individuals are wrongly accused of myriad offences: the personal impact can be equally catastrophic. Being accused of an offence like rape has substantial repercussions. But why should an individual accused of a serious non-sexual and potentially career-ending crime like fraud not receive the same protections?

One thing is certain: the current position is unsatisfactory. Whilst guidance against naming suspects is followed by the police and regulators, there is no control over suspects being named in the press.  A strong argument exists for a change in the law to ban the naming of suspects accused of any crime, save in exceptional circumstances. Arguments as to what constitutes “exceptional circumstances” can then be advanced before a judge who can properly balance thecompeting arguments. This would mean that the naming of pre-charge suspects will be a carefully considered, controlled decision where the press can be held accountable if an individual is named without the court’s sanction.

Anonymity of alleged victims

So what of Sir Cliff’s accusers? One is reportedly a convicted serial rapist, who has also made allegations against the late Sir Leon Brittan and another serving MP. However, despite his identity being known, he cannot be identified because the Sexual Offences (Amendment) Act 1992 (‘the Act’) prohibits it.  This protection applies immediately an allegation of a sexual offence is made and remains in place for life, unless the protected person consents otherwise in writing. It may only be removed by a court if the judge is satisfied that the naming of the person is necessary to:

(i)   encourage witnesses to come forward;

(ii)  avoid substantial injustice or prejudice to a person’s defence

(iii) prevent substantial and unreasonable restriction on the reporting of the trial in the public interest.

There is also an exception under S1(4) which provides that the restriction does not apply to the reporting of criminal proceedings, other than those concerning the sexual offence.

Whilst the provisions of the Act usually go unnoticed in protecting vulnerable complainants, when tested they can be controversial. This was recently demonstrated by a case involving a male solicitor (in the spirit of this article, referred to as Mr A) and a female QC.

Is anonymity of victims open to abuse?

Last August, the pair were arrested following a drunken sexual encounter witnessed by members of the public outside Waterloo station. Both were charged with outraging public decency; the QC accepted a caution. However, six weeks later, she reported to the police that she had not consented to sexual activity. This had two consequences.

Firstly, as described under the Act, as an allegation was made that a sexual assault had been committed against her, it became a criminal offence to publish anything likely to lead to her being identified. Simply by making the allegation, she gained immediate lifelong anonymity from being identified as the person cautioned for outraging public decency.

Secondly, Mr A was investigated for sexual assault, in addition to outraging public decency. The former charge was dropped in June, while he accepted a caution for the latter. However, he had by then endured months of public attention, whipped into a minor frenzy over the actions of the QC. A fellow barrister has apparently reported her to the Bar Standards Board, whilst Mr A’s solicitor suggested that she be investigated for perverting the course of justice or wasting police time. Such a prosecution would allow her identity to be revealed in reports of proceedings against her.  However, the police have advised that there is no such investigation into her actions.

This left the media in a quandary where the inability to publish the identity of a participant becomes a story in itself. The QC became a pariah, with Mr A perceived as a victim, although this newfound victimhood did little to prevent the continued publication of his name.

Some newspapers published articles stating that the woman involved was not another high-profile QC about whom rumours abounded. It is of course not an offence to publish the name of a person who has not made an allegation of sexual assault. More bizarrely, this left newspapers free to publish the rumoured name if they had believed it to be true, as that person had not in fact made a criminal complaint of any kind (although of course such action would be wide open to a defamation claim).

The Sun published a pixellated photograph alongside its article asserting who the QC was not. The Sun’s  former editor, David Dinsmore, was convicted in March 2016 for publishing a photograph of former England footballer Adam Johnson’s teenage victim. Although that photograph was heavily altered, it could apparently be identified by those who had seen the original Facebook photograph from which it had been taken. This, Chief Magistrate Howard Riddle concluded, was likely to lead members of the public to identify her as Mr Johnson’s victim.

Press freedom and legal certainty

Mr Dinsmore’s conviction raises questions about whether the provisions of the Act are sufficiently certain to give the media (including editors, who are specifically liable under the Act) sufficient freedom to report on matters of public interest without fear of prosecution, remembering that such freedom requires some degree of certainty as to what is prohibited by law.

On first reading, ‘likely to lead members of the public to identify’ appears to be a relatively straightforward definition. However, when tested by facts, it becomes more complicated. For example:

i)    Does ‘likely to lead’ assume any particular foreknowledge or level of astuteness on the part of the reader?

ii)   Does ‘members of the public’ include those with prior knowledge of the complainant, or does it envisage a random sample?

iii)  Does ‘identifying’ include an acutely curious reader using the information as a springboard for further research?

iv)  How certain does the identifier have to be of the victim’s identity? Is a mere suspicion sufficient?

The conservative view might be that this is for the best. Is there any need to publish photographs, or any personal details, of sexual offence complainants? Perhaps, but there is a counter-argument: if it is Parliament’s opinion that no photographs of complainants should ever be published, then this should be made clear in the legislation.

There is no public interest or ‘reasonable steps’ defence under the Act.  Save for publishers or editors who can prove that they were unaware that ‘the publication included the matter in question’ it is strict liability. Consequently, the media must tread the unenviable path of deciding whether to publish and risk prosecution, or desist and therefore compromise their reporting on matters of public interest. Where the risk of ‘jigsaw identification’ (meaning combined individual pieces of information from different sources combining to result in an identification) arises, the problem is even more acute. Editors and legal teams must monitor what others have or may yet publish, while taking responsibility for their own output.

This contrasts with the Judicial College guidance on reporting restrictions (updated in May 2016) which repeatedly stresses the importance of justice being administered in public and that any restriction on the freedom to report should only be a last resort.

Such a binary approach would be acceptable if it guaranteed the complainants’ anonymity, but even this ends up being confused. In particular, there is a frustrating lacuna in the pseudo-presumption of R (Press Association) v Cambridge Crown Court [2012] EWCA Crim 2434 that the Act does not protect a defendant’s identity, even where it is so closely linked to the complainant that identification of one will mean the identification of the other. Furthermore, a court has no jurisdiction under the Act to order that the defendeant’s identity should not be published in order to prevent identification of the complainant.

A journalist in this situation would have to consider potential prosecution under the Act. But this is little comfort to the (presumed innocent) defendant who not only has his or her own liberty to consider, but also whether a close person will be identified as a result of the proceedings. Although the Judicial College guidance makes clear that open justice is a priority, and restrictions should only apply where absolutely necessary and be proportionate, this cannot be right when it directly contradicts the intentions of an Act of Parliament.

Whilst one cannot condone the identification of sexual offence complainants, the Waterloo case raises questions about whether the law on identification of those involved in sexual offences could be more carefully considered. If (as the Judicial College guidance states), the media can be trusted to walk the line, then a public interest and/or reasonable steps defence would surely not result in a rash of irresponsible unmaskings. However, it would at least give the media a fighting chance to justify itself when taking risks in the public interest.

Would a private prosecution provide a remedy?

One unfortunate consequence of the law’s inflexibility is that Mr A may feel morally entitled to pursue a private prosecution (becoming increasingly popular) against the QC for perverting the course of justice. Interestingly, he would not have to obtain the consent of the Director of Public Prosecution to do so (as demonstrated in the tragic case of Eleanor de Freitas who committed suicide after being privately prosecuted for a false rape allegation). If a prosecution were successfully commenced, it would allow the identification of the QC during her trial. However, if she were subsequently found not guilty, it would not be possible to put that particular cat back in the bag. Surely, the worst of all worlds.

Ultimately, if the law cannot be improved upon, then one allegation of playing the system (which may be a genuine complaint), or journalists and newspapers occasionally enduring prosecution, should not be allowed to undermine a system intended to protect the vulnerable, and which generally succeeds. However, it is a rare case where the law genuinely cannot be improved upon: simply because something is difficult is no justification for avoiding reform.

Should we legislate for a complete ban on naming suspects and alleged victims?

The identification of both suspects and victims in criminal proceedings requires delicate handling. The decision to drop the investigation into Sir Cliff and before him, Lord Bramall, as well as the Waterloo case, reignites this debate, placing the approach to the naming of pre-charge suspects and their accusers back in the spotlight. Where suspects are concerned, it is clear that controls on the way in which they are named are necessary to protect the rights of these individuals for which no charging decision has yet been made (and may never be). The most effective way to do this is to legislate for a complete ban on naming suspects without the Court’s approval.

With regards to naming complainants, the law is caught halfway. If it is Parliament’s intention that no identifying details (no matter how obscure) should be published, the law should say so. However, if it is recognised that in a small minority of cases, it is in the public interest for (potentially) identifying details to be published, and that the media need to be given the freedom to make mistakes, then this also needs to be built into the legislation.

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